Departing AG Limits DOJ Consent Decrees

Shortly before resigning his post, as requested by President Trump, ex-Attorney General Jeff Sessions issued guidelines for the Department of Justice (DOJ) to follow when seeking consent decrees with police departments or other units of state or local government. The likely result will be to keep DOJ out of investigations of state and local law enforcement, at least until the new rule is scrapped or revised by a different administration.

On November 7, Sessions sent a seven-page memo to all DOJ litigators, criminal and civil, spelling out new restrictions on how they could employ consent decrees to settle cases brought against police departments or other units of state or local governments.

The seven-page memo began by cautioning DOJ lawyers that consent decrees should be only be used with caution and when approved by DOJ higher-ups. It added such orders generally should not impose obligations for longer than three years and should include a “sunset” provision explicitly phasing out the decree after the compliance deadline. The memo also contains measures it says are needed to assure monitors control costs and are free of conflicts of interest.

Further, the memo advised, DOJ should directly enforce compliance with ant settlement agreements it does enter, rather than delegate that task to a monitor. If that cannot be done, the memo says, it may show that the agreement is too expansive or infringes local accountability.

During Session’s time running DOJ, the agency ended investigations of police in Chicago and Louisiana, opposed a deal the Illinois Attorney General reached with the Chicago police department, and in the memo harshly criticized a consent decree DOJ had entered with the Baltimore police department.

Advocates of DOJ action aimed at state and local law enforcement agencies thought to engage in civil rights violations or abusive treatment lost no time in attacking Session’s memo. The head of the Leadership Conference on Civil and Human Rights said Session’s memo was “designed to restrict” consent decrees and would create “increasingly higher roadblocks” that would render them “rare and ineffective.” That statement came from Vanita Gupta, a former head of DOJ’s Civil Rights Division under Obama.

But the most sustained attack came about a week later, when the U.S. Civil Rights Commission, an advisory body with bipartisan presidential and Congressional appointments, issued a staff-prepared 200-page briefing report, Police Use of Force: An Examination of Modern Policing Practices.

Besides deciding based on studying available statistics, that fairly little reliable data exists on police use of force, to say nothing of how often it is or is not justified. The report’s majority also recommended a variety of policy steps, including that DOJ, should “return to vigorous enforcement of constitutional policing,” making greater use of consent decrees and reinstating DOJ’s Office of Community Oriented Policing Services (COPS).

Two of the panel’s eight commissioners dissented strongly from many of the report’s conclusions, and one took no part. The U.S. Civil Rights Commission’s chairperson who presided over the report’s adoption and was one of the affirmative votes for it was Catherine Lhamon, who for the last few years of the Obama administration, served as head of the Department of Education’s Civil Rights Division.

Sessions sent a seven-page memo to all DOJ litigators, criminal and civil, spelling out new restrictions on how they could employ consent decrees to settle cases brought against police departments or other units of state or local governments.